April 7, 2007
Interesting website connecting criminologists and crime policy
I received a nice note today from Mike Israel, a retired criminologist who moved to Washington to monitor and write about the crime policy making process, alerting me to this website at www.crimeletter.net. The website is aimed at the criminology academic and professional community and is affiliated with the Policy Section of the Academy of Criminal Justice Sciences. Here is the start of the the website's mission statement:
The concept behind this website is the fairly widely held belief that criminologists have a research based perspective that ought to be heard by policy makers; and it has not been in an effective enough way. The resources here are pointed toward relevant participation by the community of criminologists and professionals; although it is intrinsically valuable being informed about something so mystifying, this website can assist teaching, and stimulate research ideas.
The website includes an archive of periodic newsletters sent to members, and the latest newsletter discusses the (never-ending?) US Attorney purge story.
Should departures depart after Booker?
I am very proud to recommend a terrific new Note on SSRN authored by an OSU student, Lee Heckman. The piece, available here [new fixed link], is entitled "The Benefits of Departure Obsolescence: Achieving the Purposes of Sentencing in the Post-Booker World." Here is the abstract:
Since the Supreme Court decided United States v. Booker, much scholarly debate has focused on what weight the Sentencing Guidelines should be given by district courts in sentencing and appellate courts reviewing those sentences. But this focus does not advance what should be the central issue in all sentencing decisions: whether the purposes of sentencing are being fulfilled by the sentence imposed. The Booker opinion should be seen not only as creating a system of advisory Guidelines, but also as an attempt to refocus the sentencing inquiry on 18 U.S.C. Section 3553(a). Nowhere is this more relevant than in the case of a defendant seeking a reduced sentence. Prior to Booker, this was limited to narrowly defined departures from the applicable Guideline Sentencing Range. But because pre-Booker departure decisions were largely devoid of Section 3553(a) analysis--and in the case of departures based on discouraged factors, were only based on the extraordinariness of the defendant's situation--many departures were purposeless. Therefore, pre-Booker departure precedent should largely be discarded. Thus far, only the Seventh Circuit (and the Ninth Circuit to a lesser degree) has declared departures obsolete. Departure obsolescence, however, should be recognized by all courts and should be replaced with a jurisprudence that reduces sentences based on Section 3553(a)'s purposes of sentencing.
As Larry Solum might say, "Download it while its hot!"
April 6, 2007
Not quite all the capital news
The Death Penalty Information Center and also the blogs Capital Defense Weekly and Ohio Death Penalty Information and StandDown Texas Project all have a lot of new items discussing a lot of death penalty developments. However, no one is discussing the hearing held in Tennessee yesterday regarding the state's examination of its lethal injection methods: the state's Department of Correction is saying it will have an effective protocol in place for an execution scheduled next month; experienced attorneys are saying that the timeframe the Department has to investigate deficiencies in the state's lethal injection process is "nonsense."
Moreover, I continue to be amazed that the Bush Administration's acceptance of de facto moratorium on federal executions (discussed here) has received almost no attention from anyone. (In fact, the latest entry on the Federal Bureau of Prisons media page is this December 2006 press release which states that the "Federal Bureau of Prisons has set April 16, 2007, as the date on which to carry out the death sentence of inmate Bruce Carneil Webster, at the Federal Correctional Complex, Terre Haute, Indiana." I hope someone tells the BOP about the stay (which the Justice Department did not oppose) before it starts preparing Webster's last meal.)
The lack of attention given to all these lethal injection realities further confirms my view that modern death penalty debates are really about the symbolism of death sentences and not about the practical realities of executions (even though, of course, most deterrence research is focused only on executions, not death sentences).
FSR Claiborne/Rita issue now on-line
The Federal Sentencing Reporter's latest issue, which is entitled "Claiborne & Rita: Reasonableness Review in the Supreme Court" in now fully available on-line here. This issue of FSR is focused primarily on the two post-Booker cases now pending before the Court, and I previewed the contents in this post and linked my introductory commentary here.
Technicality leads Eleventh Circuit to require 5-year mandatory for veteran
Because I am personally involved in the case, I cannot provide an objective scholarly view of the Eleventh Circuit's work today in US v. Lett, No. 06-12537 (11th Cir. Apr. 6, 2007) (available here). But I think it is fair to say that the case involves an honorable veteran being ordered by the Eleventh Circuit to serve a five-year mandatory minimum sentence based essentially on a techinicality. I would be interested in hearing reader reactions.
I expect that an en banc rehearing request and a cert petition will follow, so this is surely not the end of the road for this case (or for my involvement).
Some related posts on the Lett case:
- NLJ coverage of Patrick Lett appeal
- Should prior military service reduce a sentence?
- My amicus effort to support our troops
- Is the big bad government afraid of lil' ole me?
BIG REMEDY QUESTION: As folks process this ugly ruling, I hope someone can help me undestand why it is appropriate for the Eleventh Circuit to remand for resentencing with the instruction that an unreasonable (and not legally mandated) five-year sentence be imposed, rather than just remand for resentencing. Though I disagree with the ruling that resentencing is required at all, I am especially troubled (and puzzled) about why and how the Eleventh Circuit has authority to require a particular sentencing term upon resentencing.
Another public plea for a (very unlikely?) clemency
As detailed in this Los Angeles Times article, the "parents of 'American Taliban' John Walker Lindh, who is serving a 20-year sentence in the country's toughest federal prison, stepped up their request for his release Wednesday by noting that the first U.S. war crimes tribunal in Guantanamo Bay recently resulted in a sentence of nine months for an Australian detainee held in U.S. custody since late 2001." Here are more excerpts from the article:
"John has been in prison for more than five years," said his mother, Marilyn Walker. "It's time for him to come home." Lindh's lead lawyer, James J. Brosnahan of San Francisco, called the effort "a simple cry for justice."... Lindh, now 26, is in the federal Supermax prison in Florence, Colo. His family and lawyers think that with the passage of time, there is a new opportunity to persuade President Bush to reduce the 20-year sentence.
In addition, they said, the ruling last week that Guantanamo Bay detainee David Hicks of Australia will be freed after serving another nine months has moved them to seek what they consider equal justice. Hicks was captured about the same time as Lindh in Afghanistan; unlike Lindh, Hicks was convicted of providing material support to terrorists. "The Hicks result is again evidence that John's sentence should be commuted," Brosnahan said.
Lindh's family began asking Bush for clemency in 2004, when Yaser Esam Hamdi — a U.S. citizen who was captured in Afghanistan at the same time — was deported to Saudi Arabia, where his family lives. Brosnahan said the family and his legal team thought a reduction in Lindh's sentence was appropriate because of the leniency that others were receiving. "It's a matter of fundamental justice," he said.
Margaret Love, who served as the U.S. pardon attorney from 1990 to 1997, noted that clemency petitions that cited other cases did not always prevail. She added that Bush, as governor of Texas and as president, has not been one to show mercy for criminal offenders. "This president has shown very little interest in pardoning," she said. "And that's peculiar because that's the one power that's really unlimited. He has stretched the other powers of the presidency beyond the breaking point. But this one power that really is all his, with no checks except the popular will, he's shown very little interest in it." She said that under Bush, about 900 pardon requests remained pending, along with thousands of commutation petitions.
NPR also had this strong segment yesterday discussing the contrast between the treatment of David Hicks, who received a nine-month sentence for nearly the same offenses that resulting in Lindh serving a 20-year sentence. (Hat tip to How Appealing.)
Some related posts:
April 5, 2007
A bridge over troubled offenders
The blogosphere is justifiably buzzing (see here and here) over this CNN piece about Florida sex offenders being forced to live under a bridge because of residency restrictions limiting where else they can live. Here are excerpts:
Five men -- all registered sex offenders convicted of abusing children -- live along the causeway because there is a housing shortage for Miami's least welcome residents. "I got nowhere I can go!" says sex offender Rene Matamoros, who lives with his dog on the shore where Biscayne Bay meets the causeway.
The Florida Department of Corrections says there are fewer and fewer places in Miami-Dade County where sex offenders can live because the county has some of the strongest restrictions against this kind of criminal in the country. Florida's solution: house the convicted felons under a bridge that forms one part of the causeway....
The convicted felons may not be locked up anymore, but they say it's not much of an improvement. "Jail is anytime much better than this, than the life than I'm living here now," [convicted sex offender Kevin] Morales said. "[In jail] I can sleep better. I get fed three times a day. I can shower anytime that I want to."
Morales said that harsher laws and living conditions for sex offenders may have unintended consequences. "The tougher they're making these laws unfortunately it's scaring offenders and they're saying, 'You know what, the best thing for me to do is run,'" Morales said. A Miami Herald investigation two years ago found that 1,800 sex offenders in Florida were unaccounted for after violating probation.
Florida restoring ex-felon rights
As discussed in this AP article, there has been a major criminal justice development that could impact future political fortunes in a historic swing state: Florida today has acted to allow felons to more easily get their civil rights back after they serve their sentences. Here are more details:
Republican Gov. Charlie Crist pushed the change, saying the rights to vote, hold office and serve on a jury were fundamental to being part of a democratic society. With 3-1 vote by Crist and the other members of the state's clemency board, state officials will automatically begin the restoration process for felons once they complete their sentences. Until Thursday, many had to go before the clemency board for a hearing, which only happens a few times a year and has a large backlog of people waiting to be heard....
"When somebody has paid their debt to society, it is paid in full," said Crist. "There's a time to move on, a time to give them an opportunity to have redemption, to have a chance to become productive citizens again."
Bowing to concerns from other board members about going too easy on dangerous criminals, the Crist plan was a compromise. The 20 percent of felons finishing their sentence who have committed any one of a number of serious crimes will still need the clemency board to sign off on their case to get their rights back. Those who have committed the worst crimes, such as murder or attempted murder, will still have to get on a waiting list to go before the clemency board for a hearing....
But Crist said the process for restoring civil rights was a vestige of a time that was better left in the past - and that he didn't want Florida to be among a minority of states still clinging to it. "Like Florida, many Southern states struggled through the Jim Crow era, resisting calls to change laws, continuing to deny the restoration of civil rights," Crist said. "Since then, most states have realized the historical underpinning for not repealing these unjust, unfair laws. It is time for Florida to make the same realization and leave the ranks of this offensive minority," Crist said. "Justice delayed, is justice denied. And people are waiting."...
The issue of voting rights drew attention after the disputed 2000 presidential election, when many non-convicts were purged from voter rolls because the state's felons database was plagued with errors. Crist said during his campaign for governor last year that he was struck as he asked people to vote for him how many of them replied that they weren't allowed to....
UPDATE: Here is additional coverage from the New York Times.
Nevada explores "solutions" to prison overcrowding
Thanks to this post at Think Outside the Cage, I see that Nevada is thinking about taking the release approach to dealing with its prison overcrowding problems. This local article provides some details:
About 1,600 inmates would qualify to be released from Nevada prisons if lawmakers approve a bill that doubles the time credits inmates receive for good behavior, a prison spokesman said Tuesday. And, the sentences for about 2,000 other inmates on parole would expire under the measure, designed to offer some relief to the state's crowded prisons, said Fritz Scholtman, spokesman for the Department of Corrections....
Lawmakers are grappling with a prison system that is over-budget and faces inmate population projections that demand billions of dollars in new prison construction unless new policies are developed or laws are changed.... "We are currently over our emergency capacity," [Corrections Department head Howard] Skolnik said. The department has added beds across the state, but the numbers continue to rise, he said.
Fascinating reasonableness case from the Third Circuit
The Third Circuit today in US v. Watson, No. 05-3892 (3d Cir. Apr. 5, 2007) (available here), affirms a long (but below-guideline) sentence over the defendant's arguments that his distinct personal circumstances justified a shorter sentencing term. Here are the basics from the panel's work:
Watson claims his sentence is unreasonable because it amounts to a life sentence for him in light of his serious medical condition and short life expectancy. We reject this claim and find the District Court's imposition of sentence to be reasonable. Taking into account his age and serious health condition, the District Court sentenced Watson to 120 months' imprisonment, a sentence that is appreciably lower than the bottom of the recommended Guidelines range. In reaching this sentence, the District Court acknowledged that the Guidelines were advisory post-Booker, explicitly considered the relevant § 3553(a) factors, and reasonably applied those factors to the circumstances of Watson's case.
A view from the California sentencing trenches
Following my request for information from folks working in California about the implementation and application of SB 40 (basics here and here), I received a thoughtful note from a probation officer (who has allowed me to share his insights here):
By way of introduction, I have been a probation officer in a small rural Northern California County (pop <100,000) for over 15 years. In that time I have written hundreds of sentencing reports, including death penalty cases and others with sentences of well over 100 years. I have a considerable amount experience in California sentencing laws. As a result, I am somewhat bemused by all the uproar over SB40.
What people are seemingly forgetting is that the vast majority of cases end up with a plea bargain. When this happens the defendants are explicitly told what the maximum penalty can be, prior to the court accepting their plea of guilt. They are allowed to present evidence in their behalf at the sentencing hearing, although very few actually do. Most of the time their attorneys just make a half-hearted argument. But the point is, even before Cunningham and SB40; defendants knew exactly what they were looking at when they entered a plea. Much of the time they waive that right as part of the plea....
There has been a suggestion that our system is racially prejudiced. I wonder if in this day and age it is more economically prejudiced than racially prejudiced. Those with enough money can afford the best lawyers and often get a much better deal. I would like someone to do a study on how economics relates to sentencing. To quote an old cartoon, "Everyone is innocent until proven broke."
Lots of great new stuff at SSRN
A whole bunch of new sentencing-related papers were recently posted here at SSRN, including an impressive collection of intriguing pieces from folks working with the Stanford Criminal Justice Center (which are also available here). Here are just a few of the new SSRN pieces that caught my eye:
- Beyond the Clash of Disparities: Cocaine Sentencing After Booker by Jacob Loshin
- Deciding Death by Corinna Lain
- Pedagogy of the Suppressed: A Class on Race and the Death Penalty by Phyllis Goldfarb
- Furman's Mythical Mandate by Scott Howe
April 4, 2007
Will Congress (finally) pass a Second Chance Act?
In his 2004 State of the Union address, President George Bush spoke passionately about the importance of showing compassion (and providing job training and placement services) to convicted offenders because "America is the land of second chance." Since then, various bill seeking to live up to this mantra have surfaced in the House and Senate, and now there seems to be some real momentum in Congress to pass a Second Chance Act.
FAMM has this helpful webpage (with links) discussing the progress and particulars of the Second Chance Act of 2007. Here is a summary account of the bill:
Among other things, the Second Chance Act would provide reentry funding on the state and local level to support former prisoners' needs for housing, mental health and substance abuse treatment, education, employment and rebuilding family and community ties. Nearly 650,000 individuals are released from federal and state custody each year only to find limited support to aid in their reentry efforts. The Second Chance Act of 2007 would help the formerly incarcerated successfully transition back into communities.
Second Circuit rejects challenge to DNA collection from probationers convicted of non-violent crimes
The Second Circuit today in US v. Amerson, No. 05-1423 (2d Cir. Apr. 4, 2007) (available here), has joined other circuits in upholding, against a Fourth Amendment challenge, provisions of federal law calling for DNA collection from all federal offenders. Here is the thoughtful opinion's concluding paragraph:
Taking and storing samples of DNA under the restrictions of the DNA Act fulfills many important governmental interests, only some of which are limited to the criminal history of the subjects of the DNA testing. The invasion of privacy, both immediate, and long term, from DNA testing of convicted felons — even those convicted of non-violent crimes and sentenced only to probation — is, given the safeguards of the 2004 DNA Act, relatively small. Accordingly we conclude that the 2004 DNA Act, as applied to appellants, does not constitute an unreasonable search or seizure and hence does not violate the Fourth Amendment.
UPDATE: At AL&P, S.COTUS explains here why he is not too impressed with the Second Circuit's analysis in Amerson.
Seeking to capitalize Bush v. Gore
An attorney hopes the landmark U.S. Supreme Court case that decided the 2000 presidential election will help persuade a judge to keep his client from being executed for two murders he is charged with. David Brener cited the Bush vs. Gore case in a motion last week asking the judge to eliminate the possibility of the death penalty because of inconsistencies in the way different state attorneys decide to seek the sentence.
In the 2000 Bush vs. Gore case, Brener noted, the U.S. Supreme Court criticized counties that had different standards for recounts and deciding what a legal vote was. He contends that standards for the death penalty are just as inconsistent.
Prosecutorial guidelines from the Brennan Center
Though in the works long before the US Attorney purge, it is perhaps fitting and certainly timely that the Brennan Center for Justice has just released a set of "Prosecutorial Guidelines to Address Racial Disparities in the Criminal Justice System." This press release provides the details on these prosecutorial guidelines (which are published in the latest issue of the Federal Sentencing Reporter). Here are the basics from the press release:
Today, the Brennan Center for Justice at New York University School of Law released new guidelines for prosecutors designed to promote equal justice, improve public safety and increase confidence in the criminal justice system. If adopted, the guidelines will reduce unwarranted racial disparities in the criminal justice system and provide prosecutors with practical tools to use in their work.
The recommendations focus on ways in which race plays a role in criminal prosecutions. The protocols were developed with the assistance of and signed onto by 13 former U.S. Attorneys, who also called on their colleagues in federal, state and local law enforcement to adopt the procedures in their offices nationwide.
A brewing battle over California's Cunningham fix
This item from Jeff Adachi, the Public Defender of San Francisco, spotlights that at least some defense attorneys plan to challenge vigorously the application of SB 40, California's new sentencing provisions that became law last week (and sunset at the end of 2008). As explained in this post, I am worried that SB 40 could create more problems than it solves, but perhaps this Cunningham fix will prove effective despite some defense complaints.
I would be grateful if folks working in California will report in the comments (or send me by e-mail) news of any major developments in the implementation or application of SB 40.
Some recent related posts:
- California Cunningham fix is now law
- Cunningham fix litigation and other California problems
- Wondering about criminal legislation that sunsets
Delaware House votes to repeal drug mandatories
In a notable sign of the sentencing times, the Delaware state House of Representatives passed a bill yesterday to eliminate minimum mandatory sentencing for drug offenders. Here are details from this fascinating local article:
After a lengthy debate that pitted police officers and prosecutors against defense attorneys and retired judges, the state House of Representatives passed a bill Tuesday eliminating minimum mandatory sentencing for drug offenders. House Bill 71, which passed 26-13 after a two-hour debate, would change mandatory prison sentences to presumptive terms left to the discretion of the sentencing judge.
Under existing state law, a judge must impose the minimum mandatory sentence provided in the statute. The presiding officer cannot weigh any mitigating factors to possibly lessen the prison term. “Minimum mandatory sentencing transfers sentencing power from judges to the prosecuting attorneys,” said Edmund N. “Ned” Carpenter II, a former defense attorney and deputy attorney general and past president of the Delaware State Bar Association. “It gives the prosecuting attorney the power to threaten the defendant if he doesn’t plead guilty to various charges.”
House Speaker Rep. Terry R. Spence, R-New Castle, said he sponsored HB 71 because the debate surrounding minimum mandatory sentencing has been brewing for several years but never made it to the House floor. “Hearing both sides, I felt that the time has come this year for this issue to be fully discussed on the floor,” Rep. Spence said. “The sentiment from the majority of the House was to put the final decision in a judge’s hands.”
But members of the law enforcement community, including the attorney general’s office and the Delaware Police Chiefs’ Council, said the sentencing statute applies mainly to the “worst of the worse,” and is an effective tool for them to use. State Prosecutor Richard Andrews said of 6,300 drug arrests in 2005, minimum mandatory sentencing was only applied to 133 convicts. “Mandatory sentencing is being handed out to people who rightly deserve to spend at least a couple years in prison,” Mr. Andrews said. “By weakening the drug laws, our streets are going to become more violent and we will see more crime,” said Newport Police Chief Michael Capriglione, president of the Delaware Police Chief’s Council....
Retired Wilmington police officer Rep. Dennis P. Williams, D-Wilmington, said minimum mandatory sentencing provides a necessary tool for police to get additional information from suspects and often leads to bigger arrests. “They put themselves in this position,” Rep. Williams said. “I don’t see the big issue here. This is just a lot of fanfare. “It’s a bad piece of legislation.”
Former state Supreme Court justice Joseph T. Walsh said judges already have a great deal of discretion in sentencing when it comes to capital murder cases. The judge can go against a 12-0 recommendation for death. Judges, Mr. Walsh said, take that responsibility seriously. “In each of those situations, I held a person’s liberty literally in my hand,” Mr. Walsh said. “I had an obligation to impose a fair sentence, fair to the defendant and fair to society. “It’s a very difficult balance. With the advent of minimum mandatory sentencing, there is no balance. The focus is entirely on the offense.”
UPDATE: This interesting article details that "Louis J. Freeh, the nation's former top cop and a self-described 'law enforcement guy,' is leading an effort in Delaware to repeal state laws that require minimum prison terms for convicted drug offenders."
April 3, 2007
Why is the Bush Administration (secretly?) accepting a de facto moratorium on federal executions?
In this post yesterday, I wondered why scheduled federal executions were not going forward (and also why this reality has received no media attention). Today I see that CDW here has confirmed that the federal execution of Bruce Webster, which had been scheduled for mid-April, was stayed (two months ago) through this little order. (Webster was sentenced to death more than 10 years ago for the kidnapping, sexual assault and murder of 16-year-old Lisa Rene.)
What makes the little order big news is that the Webster's motion for a stay was unopposed by the Justice Department, apparently because DOJ is content to have all federal executions on hold during litigation over lethal injection protocols. But, as I explained here yesterday, though perhaps it made sense to hold off on federal executions when the Supreme Court took up the Hill case, Hill was decided long ago. I see no obvious reason why the Bush Administration should now accept a de facto moratorium on federal executions.
Does the Bush Administration or some DOJ officials seriously question the constitutionality of its lethal injection protocol? If it doesn't, why agree to these stays? It is quite puzzling that the same administration and Justice Department that so steadfastly defends its procedures for GITMO detainees is not actively defending its procedures for executing convicted murderers.
Ironically, in this Washington Post column today, Richard Cohen attacks Alberto Gonzales for his long-ago role helping then-Texas Governor George Bush pursue a clemency policy that suggested that Texas "executions, almost no matter what, were to proceed." But, the real story the media should right now be exploring is the curious (and undefended?) reality that AG Gonzales is right now helping President Bush pursue a litigation policy that means that federal executions, no matter what, are not to proceed.
UPDATE: CDW now has here a collection of some of the death row inmates filings in the federal lethal injection litigation. But none of those documents provide any obvious reason for why the Bush Administration and the Justice Department is not vigorously defending its execution procedures and trying to move forward with scheduled dates to execute murderers convicted long ago in federal court.
Around the (mostly capital) blogosphere
Lots and lots of good new and important stuff (primarily on capital topics) can be found at these favorite blogs:
- Capital Defense Weekly
- Crime and Consequences
- Ohio Death Penalty Information
- StandDown Texas Project
Eleventh Circuit emphasizes "objective risk assessment" in affirming large downward variance
While I was off watching the Sixth Circuit in action in a capital case (basics here, webcast here), the Eleventh Circuit issued what could be an extremely significant post-Booker opinion in US v. Clay, No. 06-10088 (11th Cir. Apr. 3, 2007) (available here). Both the facts and rulings in Clay merit careful review, and here is just one of a passages in Clay that many defendants are likely to use to argue for a below-guideline sentence:
One of the purposes of our sentencing system is to impose "the punishment that most effectively lessens the likelihood of future crime, either by deterring others or incapacitating the defendant." U.S.S.G. ch. 1, pt. A, introductory cmt. 3. Both the Guidelines calculations and the sentencing factors of section 3553(a) require a judge to consider characteristics of the defendant and the offense that make it more or less likely that the defendant will reoffend.
This record reflects that the sentencing judge engaged in precisely this kind of objective risk assessment and then entered a sentence "sufficient but not greater than necessary" to satisfy the purposes of section 3553(a). The enhancements for the firearm and the acquitted conduct reflect that, unlike some other defendants who possess ten boxes of cold medicine, Clay had been involved in the drug trade for years, was armed during the offense, and required longer incapacitation to protect the community and provide just punishment. The departure for postoffense rehabilitation reflects that, unlike some other defendants, Clay has fundamentally changed since his offense, poses a lesser risk to the community, and does not require incapacitation for too long.
I sincerely hope the Supreme Court embraces these sentiments in Claiborne and Rita — especially the notion that section 3553(a) requires a judge to conduct a "kind of objective risk assessment" in order to avoid imposing a prison sentence that leads to "incapacitation for too long." If SCOTUS does follow these principles, it should lead to victories for both Mario Claiborne and Victor Rita, neither of who seem too likely to reoffend given the facts of their offenses and their personal background. (These principles ought also help out Lewis Libby in his upcoming sentencing, too.)
Among other notable aspects of Clay is who molded the opinion. Clay was authored by Judge Pryor with Judge Carnes and the Ninth Circuit's Judge Farris sitting by designation.
New paper on financial fraud sentencing
Now avaialble at SSRN via this link a new paper on white-collar sentencing entitled "Reforming Punishment of Financial Reporting Fraud." The paper is authored by Professor Samuel W. Buell, who I believe was a prosecutor on the Enron Task Force before entering the academy. Here is the abstract:
Present sentencing law in criminal cases of financial reporting fraud is embarrassingly flawed. The problem is urgent given that courts are now regularly sentencing corporate offenders, sometimes (but sometimes not) to extremely punitive terms of imprisonment. Policing of fraud by multiple jurisdictions in a federal system means that principled sentencing law is necessary not only for first-order policy reasons but also for coordination of sanctioning efforts. Proportionality and rationality demand that sentencing law have an agreed scale for measuring cases of financial reporting fraud in relation to each other, a sound methodology for fixing a given case on that scale, and a reasoned calibration of that scale. Current federal law, which controls most such cases and is a focal point for non-federal cases and public debate, is close to sensible on the first score but far off the mark on the other two. In this contribution to a symposium on "Fraud and Federalism," I describe problems in present law and offer relatively uncontroversial reform measures that could substantially improve the law governing sentencing of financial reporting fraud.
Eighth Circuit reverses another downward variance
The Eighth Circuit today in US v. Garate, No. 06-1667 (8th Cir. Apr. 3, 2007) (available here) reverses a downward variance in a sex offense case. The stated reasons for the variance and for the Eighth Circuit's reversal are quite interesting. Here are snippets from the opinion:
The district court imposed a nonguidelines sentence of 30 months. In arriving at its decision it relied "foremost" on Garate's "very young age" and cited a study finding men under the age of twenty five more likely to commit criminal acts because of cultural and environmental influences. The district court noted that the offenses were Garate's first criminal conduct and found that he had a supportive family and otherwise lived a responsible life. Although Garate had exercised "terrible judgment", the court found he was less likely to reoffend than many others who commit such offenses. In the court's opinion the collateral consequences of being convicted, such as potential residential restrictions and requirements to register as a sex offender, would be more serious punishment for Garate than his imprisonment.
On its appeal the government argues that Garate's sentence is unreasonable because the district court failed to weigh significant factors properly and gave too much weight to discouraged factors. [We agree.] ...
The variance was also based on the assumption that the collateral consequences of Garate's offenses would be more serious punishment than his imprisonment. Public policy favors such restrictions, and they are common for all convicted sex offenders. These consequences are for the protection of the public and they do not make Garate's case unusual or merit significant weight in his sentencing. A substantial variance based on these factors helped contribute to an unwarranted sentencing disparity compared to other offenders who commit similar offenses. See 18 U.S.C. § 3553(a)(6).
There were other factors deserving of significant weight but not considered at sentencing. First were the injuries Garate's offenses caused the girl and her parents. The girl had to undergo invasive medical procedures as a result of her involvement with Garate, and the father's testimony revealed the parents' anguish when their daughter was missing and their concern about the impact of Garate's offenses on her. In addition as the presentence report pointed out, the record suggests that recidivism might be expected since Garate did not cut off relations with the girl after being warned that a physical relationship with her would be illegal and that her father intended to contact the authorities.
I wonder if this case will look different yet again once SCOTUS discusses Booker and reasonableness review in Claiborne and Rita.
A record setting performance?
This article reports on what seems like a record-setting term of imprisonment given by an Ohio judge to a child molester:
Joseph Palmer, the Washington Court House man convicted of sexually molesting three young girls over a span of almost 11 years, will spend the rest of his life in prison.
"Your victims and the community can take some comfort from the fact that you'll never breathe another breath of free air," Fayette County Common Pleas Court Judge Steven Beathard said Monday after sentencing Palmer to the maximum penalties for all of the 151 counts of which he was convicted. "That may be the only comfort they can take from this."
The charges included numerous counts of rape, gross sexual imposition, felonious sexual penetration and unlawful sexual conduct with a minor. Palmer was sentenced to at least 1,128 years in prison in total. No one at the courthouse could recall a longer prison sentence in the history of Fayette County.
Does anyone know of an impose sentence that was longer than 1,128 years in prison? If I am ever to be the Tim Kurkjian of sentencing statistics, I have to know what was the longest sentence in years ever imposed. Has Joseph Palmer set the record?
UPDATE: A helpful reader provided these additional "statistics" on record sentences:
(1) Kyzer v. State 484 So.2d 1202 (Ala. Cr. App. 1986): sentenced by jury to 10,000 years for first degree murder.
(2) P v. Jackson (unpublished) In 1998, a Sacramento California d.a. argued for a sentence of 1723 years to life in a sex offense case. Imagine his/her disappiontment when the defendant was only sentenced to a determinate sentence of 145 years, to be followed by an indeterminate term of 925 years to life, i.e. 1070 to life. The defendant was Benny Jackson, Sacramento County case no. 98F00182. If Palmer's sentence is fully determinate, i.e. not a life term, then I suppose Jackson's is theoretically longer. Note: Jackson appealed and he got some sort of partial reversal.
More attention for Genarlow Wilson
I am pleased to see continued major media coverage of Genarlow Wilson's case (prior examples here and here). Here are too more pieces complaining about the extreme sentence Wilson is serving for a consentual sexual encounter with another teenager:
- This item at the Washington Post entitled "Perverted Justice: Updating the Genarlow Wilson Tragedy; Georgia Legislature Snoozes and a Promising Teen Loses."
- This piece from syndicated columnist Leonard Pitts entitled "Still waiting for common sense in Georgia."
Will Florida forge a new path on felon disenfranchisement?
As reported in this New York Times article, Florida's new Governor is seeking to move the state in a dramatic new direction on the issue of felon disenfranchisement. Here are details:
Hinting that a remarkable turnaround in state policy was near, Gov. Charlie Crist said Monday that he hoped to persuade members of the Florida cabinet this week to end the practice of stripping convicted felons of their right to vote. Florida is the most populous of three states whose constitutions require withdrawal of voting rights from all convicted felons, and it has the nation's largest number of disenfranchised former offenders. The other two states are Kentucky and Virginia.
Felons in Florida who have served their prison and probation time can apply to have their voting rights reinstated, but the process can be time consuming and complex. Only a few hundred have their rights restored each year in Florida, where the American Civil Liberties Union says 950,000 remain disenfranchised.
Mr. Crist, a Republican, said that to win the support of some cabinet members, he might require former felons to pay whatever restitution they owe to victims before regaining their rights. Some civil rights groups, including the A.C.L.U., oppose such a compromise, but Mr. Crist said he had little choice. "I want to do the doable," he told reporters in Tallahassee. "I'm pushing as hard as I can to get as much as I can, but there’s a point beyond which I cannot go."
Only a constitutional amendment could formally end the ban, but under state law, the governor and cabinet — who also make up the state clemency board — could grant blanket clemency to everyone who completes their sentence. Mr. Crist needs two of the three cabinet members to sign off on the plan....
"I believe in my heart that everybody deserves a second chance," Mr. Crist said. "And I'm hopeful that maybe later this week we'll have an opportunity to restore civil rights for Floridians and give them that right to vote."
If Governor Crist can blaze a new path on this issue in Florida, I may be a little less grumpy that his state's flagship university keeps beating my state's flagship university on the playing fields.
April 2, 2007
What's up with federal executions?
Capital Defense Weekly reports here that "[u]nconfirmed reports have the federal execution date of Bruce Webster for mid-April being stayed." I cannot find any additional information on the web about this, and I continued to be amazed by how little attention federal executions — or rather the lack of federal executions — receives in the media.
Despite the Bush administration's avowed affinity for the death penalty and its decision to pursue more federal capital cases, there has been little federal execution activity in recent years. Specifically, as shown at the end of this DPIC list, nearly four years have passed since the last federal execution and only a single federal defendant has been executed in nearly six years.
Notably, three federal executions were stayed last year because of lethal injection concerns while the Supreme Court considered the Hill case. But Hill was decided long ago, and I have not heard of any efforts by the Bush administration to gear up the federal execution chamber. And now there are "unconfirmed reports" about a stay of the federal execution slated for later this month. Does anyone know exactly what's going and why this significant story does not get nearly as much attention as federal capital prosecutions decisions?
All of these developments confirm the (puzzling?) conclusion I have reached about modern death penalty debates: most folks on both sides of the debate seem to care a lot more about death sentences than they care about whether those sentences result in actual executions. I guess this is just more proof that death is different.
Some recent related posts:
- Tracking the execution realities of 2007
- Great HLR note on lethal injection litigation
- Documenting and dissecting death's delay
- More coverage of death delayed
- Context-free ruminations on the federal death penalty
- The federalization of the death penalty
- Ashcroft's death penalty "legacy"
The state of punishment and prisons ... and changing times
In the latest New York Review of Books, Jason DeParle has this terrific piece entitled "The American Prison Nightmare." The article is a must-read, in part because it provides highlights of three recent works about sentencing and corrections that are all really must-reads in their own right. The article is full of data, critical insights and fresh perspectives (as are the books being reviewed).
There's too much good stuff in the article to summarize, so I will pinpoint one great closing passage that highlights why I am cautiously hopeful that the 2008 election campaign could beget some better talk (and eventually better times) on sentencing and corrections issues:
In December, Senator Sam Brownback announced he was running for president. A few days later, the conservative Kansas Republican chose to spend the night in a cell at the Louisiana State Penitentiary in Angola. "We don't want to build more prisons," he said. "We don't want to lock people up." He was there to advertise his support for the prison's religious programs. Still, his move represented, to say the least, a break with past presidential campaign practice, which includes advertising the crimes of a black rapist (George H.W. Bush), executing a brain-damaged man (Bill Clinton), and mocking the fears of a soon-to-be-executed woman (George W. Bush).
Some related posts on modern sentencing politics:
Another (sorry?) California sentencing story
Thanks to this post at Crime & Consequences, I came across this interesting Los Angeles Times piece discussing a UCLA study of Proposition 36, California's initiative that called for the state to treat drug users rather than jail them. Here is a snippet from the article:
From the start, Proposition 36 faced overwhelming challenges. The initiative gave most nonviolent offenders convicted of drug possession the option to enter treatment rather than jail or prison. Since it started in July 2001, about 50,000 people have entered the program each year. Half had never received treatment.
But the severity of their addictions took the measure's authors by surprise. More than half of the defendants reported using drugs for longer than a decade, according to evaluations by UCLA researchers. Some had spent lifetimes in and out of prison....
By diverting offenders ... into rehab, Proposition 36 has reduced the number of prisoners at any time serving sentences for drug possession by more than 4,000, from nearly 19,000 when it began in 2001. Yet, while fewer offenders are sentenced to long prison and jail terms, law enforcement officials complain that they are busier than ever arresting drug users. Many have outstanding warrants for violating Proposition 36.
Courts have little choice but to release them unless they have exhausted their three chances. A Times analysis of Los Angeles County jail data found that drug possession bookings soared 150% between 2000, the year before Proposition 36 began, and 2005.
Drug counselors, judges and county officials say the program desperately needs more money. The ballot measure set aside $120 million a year for the first five years, yet defendants often wait weeks, sometimes months, before a residential treatment bed is available. Less costly outpatient treatment is more readily available but has proven largely ineffective with long-term abusers.
The LA Times piece suggests to me that Prop. 36 is yet another sentencing story of good intentions done in by pragmatic realities and a general unwillingness to fund a program as the going gets rough. I would hope that thoughtful evidence-based tweaking of the drug-treatment program could make it more effective, but I am not sure I would count on California's dysfunctional criminal justice system working effectively toward thoughtful evidence-based tweaks.
Santa Claus Sixth Circuit is coming to town
I am excited to report that I will just need to walk down a hallway to see a death penalty appeal first-hand tomorrow. This OSU press release provides the highlights:
A panel of judges from the U.S. Court of Appeals for the Sixth Circuit will be holding an official session of the Court on Tuesday, April 3 at the Moritz College of Law. Judges Boyce Martin, R. Guy Cole and Jeff Sutton '90 will hear a complicated federal habeas case in which an Ohio death row prisoner has brought a series of constitutional challenges to the Ohio state court proceedings that resulted in his conviction and death sentence for a murder committed in Summit County, Ohio in the mid-1990s.
Over at Concurring Opinions, Alice Ristoph reports here on what he students recently learned from hearing oral arguments, I am expect I will be one of many learning tomorrow.
Notable (but limited) SCOTUS action
SCOTUSblog has all the news on today's Supreme Court action, which includes a notable (but perhaps troublesome) order requesting supplemental briefing in Panetti v. Quarterman. The big news is two big decisions in environmental cases
Still no word on the ACCA case James that was argued five months ago. Apparently it was easier for the Justices to figure out global warming than to figure out criminal history doctrines.
A new New York under Spitzer?
The Gotham Gazette has this interesting and detailed article entitled "Criminal Justice Under Eliot Spitzer." This piece provides lots of information about how New York's new Governor might recast criminal justice law and policy in the Empire State.
Restorative justice and sentencing circles
This Boston Globe op-ed discusses a distinct way to deal with wrongdoing and family strife that seeks to thwart future criminality:
At Roca Inc., a youth agency, "peacemaking circles" are being used to resolve disputes within a family and to provide alternative forms of sentencing for criminal defendants. "As an alternative sentencing process, the defendant has to plead guilty and must be sincerely committed to personal accountability and to real change," says Saroeum Phoung, coordinator for special projects at Roca. "That type of change is not what traditional sentencing demands of the defendant."
When used in alternative sentencing, a peacemaking circle includes the victim of a crime, the defendant, and families or supporters of both. Also present are police, court authorities, and other agencies -- such as child welfare agencies -- with an interest in the life of either the victim or the perpetrator. All may be heard. Still, the circle honors the victim especially, who can participate in a more comprehensive way than in a criminal court proceeding. In an alternative sentencing circle, all participants must come to a consensus on the punishment of the offender, within the law. "That doesn't mean that jail time is off the table," Phoung adds. The group, including the defendant, might still decide there is no remedy other than prison.
Peacemaking circles are part of a nationwide movement toward restorative justice, which is based on the idea that an offense to any individual is something that impacts the whole community. The goal of the circles, based on an aboriginal system of justice taught to Roca by the Tagish Tlingit people from Canada's Yukon Territory, is to restore the community, to make it well again. "This is not about being soft on crime," says Phoung. "Many who have participated say that jail time is easier than the real accountability in facing the people you've hurt, the community you've done harm to, or even yourself."
I would be interested to hear from any readers with direct experience with sentencing or peacemaking circles.
April 1, 2007
More coverage of death delayed
This local article from Pennsylvania, entitled "Death penalty becomes a life sentence of appeals," highlights that most murderers sentenced to death do not get executed before dying in prison. Here are snippets:
For all practical purposes, Pennsylvania's death penalty is a life sentence — just one with an endless stream of appeal hearings and rehashing of the facts. Since the death penalty was reinstated in 1976, Pennsylvania has executed three people [while now having 221 death-row inmates].
Leon Moser and Keith Zettlemoyer were executed in 1995. Philadelphia torture-killer Gary Heidnik was put to death in 1999. All three voluntarily gave up all appeals.
Some recent related posts:
Sixth Amendment clarity in the midst of March Madness
I recently noted here the big habeas development from New York in the form of Portalatin v. Graham, No. 06 CV 5002 (EDNY Mar. 22, 2007) (available here). I have now had a chance to read Portalatin closely; Judge Gleeson's work is exceptional and should be read in full by all Blakely followers. Of particular note is how, in finding New York's discretionary persistent felony offender statute unconstitutional, Portalatin highlights (and rejects) New York's effort to take a functional approach to the reach of the Sixth Amendment:
Rosen posits a world in which factfindings necessary to imposition of an enhanced sentence -- beyond the prior convictions that render the defendant merely eligible for one -- may be allocated between judge and jury by reference to the "traditional roles" of each. As elaborated upon by Brown, in that world, offense elements or their "functional equivalents" must be submitted to juries, but "amorphous" determinations regarding a defendant’s history and character, and whether extended incarceration and life-time supervision are necessary, may properly be made by a preponderance of the evidence by judges. I accept, as I must, Brown's holding that such a world constitutes a not-unreasonable application of Apprendi, but I think it clear that it is now contrary to (and objectively unreasonable in light of) Ring and Blakely.
Though I am not sure I agree completely with Portalatin's analysis, I am sure Judge Gleeson has produced one of the strongest recent Sixth Amendment decisions.
Getting tough on violent crime ... victims
This story from Vermont provides an interesting example of how federal sentencing mandates can lead to some unexpected responses to violent crime:
When the gunfire ended, one young man lay bleeding near a Burlington intersection and another retreated to his nearby apartment, dropped a pistol to the floor and phoned a lawyer for help. Now, more than two years after a botched, late-night drug robbery spilled into the street and rattled a tranquil neighborhood, one of the men is preparing to report to prison to serve a five-year sentence while the other is about to be released after a three-month stretch.
The sentences of the man about to be incarcerated and the man set to be freed might not be what the casual observer would suspect. The longer sentence went to the shooting victim. Michael Ryan Manovill, 22, of Hydeville was sentenced late last month on federal charges of carrying a firearm during a drug deal. The man who pulled the trigger, Paul Farrar, 23, of Essex was sentenced in January in state court to a three-month minimum on an assault charge. Farrar is scheduled to be released from prison today.
The incident highlights a disparity in sentencing structures, judicial flexibility and the severity of punishment in the Vermont and the federal court systems. Federal law prescribes sentencing guidelines and rigid mandatory minimums, especially for drug-and-gun offenses. Such strict legal controls do not govern state courts.
Manovill and Farrar brought similar stories to their sentencing hearings: former stand-out high school athletes, upstanding young men who made one critical mistake, little criminal history, a deepening involvement in the drug trade before the shooting, substantial rehabilitation afterward. In Farrar's case, a state judge was able to take that tale into account in crafting a sentence. In Manovill's case in the federal system, his story added up to little more than an interesting anecdote.
All those involved in the case -- police, prosecutors, defense lawyers, family members of the suspects, neighborhood residents -- agree something is amiss when a shooting victim is embarking on a prison term 20 times longer than the shooter's sentence....